FEDERAL COURT OF AUSTRALIA

AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

BACKGROUND

1    The appellants—a husband, his wife and four of their five children—are citizens of Pakistan. Each claims to be entitled to the grant of a protection visa (within the meaning attributed to that phrase by the Migration Act 1958 (Cth)—hereafter, the “Act”). Those claims all hinge upon the circumstances of the first appellant, the husband and father. He claims protection on the basis that he qualifies as a refugee, or otherwise because he qualifies for what is often referred to as “complementary protection” under s 36(2)(aa) of the Act. The remaining appellants claim that they are entitled to consequential protection as members of the first appellant’s immediate family.

2    The first appellant originally hails from Karak, in Pakistan’s Khyber Pakhtunkhwa province. He is a Sunni Muslim of Pashtun ethnicity, who, prior to leaving Pakistan, lived and worked in Islamabad. He arrived in Australia on 7 September 2008 with a Diplomatic/Official Sub Class 995 Visa. His family accompanied him.

3    On 19 February 2013, he and his family applied under the Act for protection (Class XA) visas (that application is referred to, hereafter, as the “Visa Application”). On 30 June 2014, the first respondent (hereafter, the “Minister”), by his delegate, refused the Visa Application (that decision is referred to, hereafter, as the “Minister’s Decision”). On 11 July 2014, the appellants validly applied to the Refugee Review Tribunal for a review of the Minister’s Decision (that application is referred to, hereafter, as the “Review Application”). A hearing was convened and the appellants were afforded (and availed themselves of) opportunities to advance submissions and other material in support of their Visa Application. On 6 December 2015, the second respondent (hereafter, the “Tribunal”)—which, from 1 July 2015, assumed the relevant functions of the Refugee Review Tribunal—affirmed the Minister’s Decision (that affirmation is referred to, hereafter, as the “Tribunal Decision”).

4    On 4 January 2016, the appellants made an application to the Federal Circuit Court of Australia (hereafter, the “FCCA”) for judicial review of the Tribunal Decision (that application is referred to, hereafter, as the “Judicial Review Application”). That application was amended on 10 July 2018, ahead of a hearing in August 2018. On 2 November 2018, the FCCA dismissed it: AAG16 & ors v Minister for Immigration & Anor [2018] FCCA 3145 (Judge Wilson—hereafter, the “FCCA Judgment”).

5    The appellants now appeal from the FCCA Judgment. They ask that the FCCA’s orders be set aside and that, in their place, this court grant relief in the nature of certiorari and mandamus to quash the Tribunal Decision and remit the Review Application back to the Tribunal to be determined according to law. They also seek an order that the first respondent pay their costs, both of the present appeal and of the Judicial Review Application.

The appellants’ protection claims

6    Between December 1988 and October 1995, the first appellant was employed as a messenger (or “naib qasid”) by the Pakistani Foreign Office in Islamabad. Between November 1995 and December 1999, he served as a security guard at the Pakistani consulate in Mashhad, Iran. In January 2000, he returned to the Pakistani Foreign Office in Islamabad, where he worked as a security guard and driver. He maintained that position until November 2003, when he was deployed to the Pakistani consulate in Jalalabad, Afghanistan. He served there—again as a driver—until February 2007. Between March 2007 and August 2008, he resumed his position as a driver at the Foreign Office in Islamabad. In September 2008, he was deployed to the Pakistani High Commission in Canberra, where he continued to work as a driver until January 2013.

7    The first appellant maintained that, over the course of his work as a driver in Jalalabad, he was tasked with transporting the Pakistani Consul-General to meetings with security agencies or representatives of the Afghan government, as well as to meetings at a United States military base and a United Nations compound. He was not, himself, involved in those meetings and did not know their purpose (although he did know that the main function of the Consul-General was to issue visas to Afghans who wished to visit relatives in neighbouring Pakistan). All the same, it was primarily because of his employment as a driver that the first appellant was prompted to make the Visa Application.

8    In support of that application, the first appellant claimed that he could not return to his homeland because an Islamic extremist organisation that operates in Pakistan, Tehrik-e-Taliban Pakistan (hereafter, the “TTP”), had mistakenly accused him of being a spy for the Pakistani and United States governments, and had threatened him with death. It followed, so the appellants maintained, that the first appellant had a well-founded fear that he would be persecuted or otherwise subjected to significant harm if he returned to Pakistan; and, therefore, that he satisfied at least one of the criteria that condition the granting of protection visas: the Act, s 36. The second-to-sixth appellants, as members of the first appellant’s family unit, contended that they were entitled to the same protection.

9    The first appellant claimed that his mistaken identification as a spy was documented in two threatening letters that were received at his parents’ address in Islamabad. The first was received in October 2012; the second in February 2013. For reasons that will be apparent, those two letters (referred to, hereafter and collectively, as the “TTP Letters”) assume central significance to the appellants’ case in the present appeal. It is convenient to set out their content in full.

10    The first of the TTP Letters, translated from Urdu to English, stated (with original emphasis and errors):

Taliban Movement of Pakistan

Orakzai Agency

Date: 06/10/2012

Mr [first appellant], son of [the first appellant’s father]

According to our information you are working for the secret agencies of Pakistan and America. Previously you were spying in Iran then you came to Afghanistan via Pakistan.

You have been informed to attend our office, located at the Orakzai Agency, so that you can provide your argument.

Otherwise you and your family members will be murdered.

Taliban Movement of Pakistan

Sector of the Mishti Orakzai Agency

11    On 1 January 2013 (nearly three months after receiving the first of the TTP Letters), the first appellant’s father made a statement to local police, in which he referred to having received “…letters from [the] Taliban stating that ‘You have to present your son to the Taliban group office at Orakzai Agency…otherwise your whole family will be killed’”.

12    The second of the TTP Letters, received nearly a month after that statement was made, read as follows (again, translated; and, again, with original emphasis and errors):

Taliban Movement of Pakistan

Orakazai Agency

Date: 05/02/2013

Mr. [first appellant] Son of [the first appellant’s father]

You have been informed to attend our office at Orakzai Agency so that you can provide your argument; otherwise we will act against you.

Our Mujahids have taken orders to find you and your family.

Spying for America carries the death penalty and you will be murdered.

Taliban Movement of Pakistan

Sector of the Mishti Orakzai Agency

(SIGNED)

13    In addition to the TTP Letters, the first appellant claimed that his father had received a number of telephone calls from unknown sources inquiring about his (the first appellant’s) whereabouts. Those calls preceded the TTP letters and, initially, were of little concern to the first appellant. After his father received the first of the TTP letters, however, he (the first appellant) became concerned about why the telephone calls had been made. The first appellant told the Tribunal that there were three such telephone calls; although he also suggested that they were numerous enough or sufficiently concerning (or both) that his father was moved to change his telephone number.

14    In support of the Visa Application, the appellants led country information that, amongst other things, suggested that the TTP, or groups or individuals associated with it, had executed innocent people that had been wrongly accused of spying; and had done so with little if any prior investigation as to whether the accusation was well-founded. It was said that, since the death of Osama bin Laden in May of 2011, the TTP had been actively hunting and executing those that were accused of spying.

15    Those facts were, the appellants submitted, sufficient to establish the first appellant’s entitlement to protection (and a consequential entitlement for the other appellants).

The statutory framework

16    Section 36 of the Act identifies the criteria that an applicant must satisfy in order to qualify for a protection visa. It is unnecessary to set the section out in full in these reasons. In simplified terms, an applicant must demonstrate that he or she is owed protection obligations as a refugee—that is, as a non-citizen unable or unwilling to return to their country of origin on account of a well-founded fear of relevant persecution—or otherwise because he or she faces a real risk of significant harm if removed from Australia: the Act, ss 36(2)(a) and (aa). Relatives forming part of the family unit of a person who is granted a protection visa on either of those bases are themselves entitled to equivalent protection: the Act, ss 36(2)(b) and (c).

17    “[F]amily unit” is defined by r 1.12 of the Migration Regulations 1994 (Cth). There is no issue in this appeal that each of the second-to-sixth appellants was a member of the first appellant’s family unit.

18    Part 7 of the Act provides for the review of certain decisions made under the Act by or on behalf of the Minister. Again, there is no issue in the present appeal that the Minister’s Decision qualified as one that could be reviewed in accordance with the provisions of part 7. In conducting such a review, the Tribunal was invested with the same power that the Minister had: the Act, s 415(1). Amongst other things, it had the power to affirm or set aside the Minister’s Decision: the Act, s 415(2).

19    The Minister’s power to grant the Visa Application resided in s 65 of the Act, which, at the applicable time, relevantly provided:

65 Decision to grant or refuse to grant visa

(1)    After considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

        is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

The Tribunal’s decision

20    The Tribunal did not accept that the first appellant would, if he returned to Pakistan, be at risk in the ways that he identified. It concluded that neither he nor the remaining appellants were able to meet any of the criteria that conditioned the grant of protection visas. It affirmed the Minister’s Decision for that reason.

21    In doing so, the Tribunal considered what the appellants had put before it. Specifically, it accepted, as they had maintained, that the TTP had executed people in Pakistan that were wrongly accused of spying. It also accepted that the first appellant’s role as a driver didn’t preclude the possibility that the TTP would wrongly accuse him of being a spy. There were aspects of the first appellant’s narrative, however, that the Tribunal apparently doubted. It is convenient to set out in full the key passages from the Tribunal’s written decision:

33.    I accept that, as [the first appellant]’s representatives said in their submission to the Tribunal dated 8 May 2015, the fact that he was only employed as a driver by the Pakistani Government does not preclude the possibility that he could be, or could be imputed to be, a spy. I also accept that, as referred to in their submissions, apparently innocent people have been executed by the Taliban in the tribal agencies in Pakistan on the basis that they were alleged to be spies. [The first appellant]’s representatives referred to his ‘unique employment history’ and in their submission dated 8 July 2013 they submitted that it was likely that [the first appellant] would have had to drive the Consul General to meetings with the CIA, ISI, ISAF or the Afghan Government during his employment. However the most that can be said on the basis of the evidence before me is that [the first appellant] had to drive the Consul General to meetings at a US army or marine base in Jalalabad and a United Nations compound. I accept his evidence that he had had to take the Consul General to different offices but that as a driver he did not know which offices these were or who the Consul General was meeting. This makes it difficult in my view to accept that [the first appellant] would have been accused by the Pakistani Taliban of working for the secret agencies of Pakistan and America on the basis of his employment as a driver at the Foreign Office.

34.    [The first appellant]’s posting in Jalalabad ended in February 2007 and despite any presumed knowledge which the Taliban may have had of his employment through their links with the ISI he then worked in Islamabad again without incident until he was posted to Canberra in September 2008. [The first appellant] claims that it was only in May 2011 that his father started to receive telephone calls from unidentified persons asking where he was. He has referred to the fact that this was shortly after Osama bin Laden had been killed and he has said that the Taliban would have been searching for spies. He has said that he cannot think of anyone other than the Taliban who would have been asking where he was. However he has said that there were only three such telephone calls and that after this his father changed his telephone number.

    …

37    With regard to why his father had not reported the letter dated 6 October 2012 from the Taliban to the police until 1 January 2013, over two months later, [the first appellant] said that his father had not taken the first letter seriously. He said that his father had sent him a copy of the letter and he had been scared but that he had not reported the fact that he had received this letter to his superiors in Canberra because it had said that he had been spying for the CIA and the ISI and he had been afraid that he would be sent back to Islamabad and that there would be an inquiry. In his further statutory declaration made on 29 May 2015 he said that he had not reported the letter from the Taliban dated 6 October 2012 to his superiors in Canberra because his contract had been due to expire on 4 January 2013 and he had been worried that if he reported the letter the Government of Pakistan would not have completed the investigation, or have taken action to protect him from the Taliban, by the time he was due to leave Australia. He added that the Government of Pakistan would not provide protection for someone like him and that they would have expected him to return to Pakistan. He said that ‘they could not protect me so I was afraid to return’.

38.    With regard to the fact that his father had not reported the letter dated 6 October 2012 from the Taliban to the police until 1 January 2013, over two months later, [the first appellant] said that ‘my father did that because of my work with the High Commission’ and that his father had wanted a record if anything happened to his father. With regard to the fact that the timing of the letters coincided with the ending of his posting in Australia, [the first appellant] said that he thought that this was a coincidence. He said that he had had a good job in Pakistan and that his reason for staying in Australia was purely his fear for his life.

39.    I do not consider it credible on the basis of the evidence before me that [the first appellant] would have attracted the attention of the TTP or the Pakistani Taliban because he worked for the Foreign Office in Pakistan as a security guard and driver in Iran, Pakistan and Australia, or specifically because he worked as a driver at the Consulate General in Jalalabad from November 2003 until February 2007. As he conceded, the main function of the Consulate General in Jalalabad is to issue visas to Afghans wishing to visit relatives in Pakistan. While I accept that [the first appellant] drove the Consul General to meetings at a US army or marine base in Jalalabad, a United Nations compound and different offices, I accept that as a driver he did not know which offices these were or who the Consul General was meeting. I do not consider it credible that [the first appellant] would have been accused by the Pakistani Taliban of working for the secret agencies of Pakistan and America on the basis of his employment as a driver at the Foreign Office as he claims.

40.    Having regard to the inconsistencies in [the first appellant]’s evidence I do not accept that his father received three telephone calls from unidentified persons who he believes to have been from the Taliban asking where he was after Osama bin Laden was killed in May 2011, nor that, as his father claimed in the report which his father made to the police on 1 January 2013, his father had been receiving threatening telephone calls from unknown numbers for the previous one and a half years. I accept that his father made this report to the police in Islamabad a matter of days before [the first appellant]’s posting in Canberra was due to end but I give greater weight to the problems which I have with [the first appellant]’s evidence tha[n] I do to this report or to the two letters which he has produced purporting to be from the Taliban. I do not accept on the evidence before me that [the first appellant] has been threatened by the Taliban because they have accused him of working for the secret agencies of Pakistan and America as he has claimed.

41.    Having regard to my findings of fact above I do not accept on the evidence before me that there is a real chance that, if [the first appellant] returns to Pakistan now or in the reasonably foreseeable future, he will be persecuted because he will be imputed by the Taliban with a political opinion in support of Pakistani and American security agencies such as the ISI and the CIA, because he will be viewed as a ‘kafir’ or non-believer, as submitted by his representatives, or because he will be perceived to be a member of the particular social groups of ‘Pakistani secret agency employees’ or ‘American secret agency employees’. I do not accept for the reasons given above that [the first appellant] has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future. As referred to above, [the first appellant]’s wife and his sons and daughters indicated that they did not have claims of their own and that they were applying as members of his family unit. I do not accept on the evidence before me that they have a well-founded fear of being persecuted for one or more of the five Convention reasons if they return to Pakistan now or in the reasonably foreseeable future.

…

42.    Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the first appellant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm at the hands of the Tehreek-e-Taliban Pakistan (TTP, the Pakistani Taliban). This being the only claim he has made, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the first appellant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act 1958. As referred to above, [the first appellant]’s wife and his sons and daughters indicated that they did not have claims of their own and that they were applying as members of his family unit. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

The judicial review application

22    Before the FCCA, the appellants contended that the Tribunal Decision was a product of jurisdictional error and ought, for that reason, to be set aside and re-determined. Their amended application of 10 July 2018 identified that error in the following two ways:

1.     The second respondent (the Tribunal) failed to conduct the review of the decision of the first respondent’s delegate dated 6 September 2015 not to grant the applicants protection visas (the primary decision) required by ss 65 and 414 of the Migration Act 1958 (Cth) (the Act), in that its finding that it was not satisfied that the first applicant met the criteria for a protection visa was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

Particulars

(a)     The first applicant claimed to be entitled to a protection visa on the grounds that if he was required to return to the applicants’ home in Islamabad, Pakistan, then:

(i)     there was a real risk that he would be persecuted by an organisation known as the Tehrik-e-Taliban Pakistan (the TTP) for reasons of:

1.1     a political opinion in support of the governments of Pakistan and the United States that had been imputed to him by the TTP; and/or

1.2     his membership of a particular social group comprising persons suspected of having spied on behalf of or otherwise supported the governments of Pakistan and the United States; and

(ii)     the government of Pakistan would be unwilling or unable to protect the first applicant from persecution by the TTP.

(b)     The second to sixth applicants claimed to be entitled to protection visas on the grounds that they were members of the same family unit as the first applicant.

(c)     The Tribunal found that apparently innocent people had been executed by the TTP on the basis that they were alleged to be spies.

(d)    The Tribunal concluded that it was not credible that the first applicant would have been mistakenly accused by the TTP of having spied on behalf of or otherwise supported the governments of Pakistan and the United States.

(e)     The conclusion referred to at paragraph (d) proceeded from an implicit generalisation that the TTP does not ordinarily mistakenly accuse innocent persons of spying on behalf of or otherwise supporting the governments of Pakistan and the United States.

(f)     The conclusion referred to at paragraph (d) above and the generalisation referred to at paragraph (e) above were manifestly irrational and illogical in light of the finding referred to at paragraph (c) above.

2.     The Tribunal failed to conduct the review of the primary decision required by ss 65 and 414 of the Act, in that it failed to make findings of fact that it was required to make.

Particulars

(a)     The first applicant refers to and repeats particulars 1(a) and 1(b) above.

(b)     In support of their claims, the applicants placed before the Tribunal two documents that, if authentic, contained death threats made by the TTP against the first applicant because of the imputed political opinion described at paragraph 1(a)(i)1.1 above and/or the first applicant’s membership of the particular social group described at paragraph 1(a)(i)1.2 above.

(c)     The Tribunal failed to make any finding as to whether it was satisfied that the documents referred to at paragraph 2(b) above were authentic.

23    The FCCA dismissed both of those contentions. It found that the Tribunal Decision was not legally unreasonable and that there was no failure to make findings as alleged. It followed that the Tribunal Decision was not attended by either species of alleged jurisdictional error. By their appeal to this court, the appellants contend, simply enough, that the FCCA was wrong so to conclude.

24    The central issues in the present appeal, then, are the same as they were before the FCCA: namely, whether the Tribunal Decision was a product of jurisdictional error (specifically, either or both of the same errors that were advanced before the FCCA). That being so, it is unnecessary to consider or here recite the reasons for which the FCCA decided as it did. If the Tribunal Decision was affected by jurisdictional error in either or both of the ways that the appellants identify, then the FCCA will have erred by finding otherwise. If it wasn’t, then the FCCA will have correctly decided as much.

25    For the reasons that follow, the Tribunal Decision was not attended by jurisdictional error. The decision of the FCCA was correct and this appeal is, for that reason, dismissed with costs.

Ground one: legal unreasonableness

The appellants’ contention

26    As is outlined above, the appellants advanced “country information” in support of their Visa Application that suggested that the TTP (or groups aligned with it) had, in the years leading up to October 2012, executed people in Pakistan on the mistaken belief that they were spies. The Tribunal accepted that that was so: Tribunal Decision, [33] (above, [22]). It did not, however, accept that the first appellant was someone whom the TTP mistakenly believed was a spy: Tribunal Decision, [40] (above, [22]).

27    The appellants contend that that latter conclusion (that the first appellant was not someone whom the TTP mistakenly believed to be a spy), “…proceeded from an implicit generalisation that this is something that does not ordinarily occur.” Such a generalisation, it was said, was fatally inconsistent with the Tribunal’s acceptance of the country information that the appellants presented. By the written submissions advanced on their behalf, the appellants contended:

Where an irrational generalisation results in the formation by an administrative decision maker of a predisposition with respect to the credibility or plausibility of a party’s account of events, the predisposition is legally infirm; if the predisposition infects the decision maker’s conclusion on a question of jurisdictional fact, the relevant decision is tainted by jurisdictional error.

…

[A] generalisation that is wholly inconsistent with evidence that has itself been accepted and relied upon by the Tribunal may be considered irrational or illogical in the extreme sense referred to in the authorities; if the generalisation taints the Tribunal’s determination of whether the applicant meets the criteria for the grant of the visa in issue, that decision will be affected by jurisdictional error.

28    In other words, the appellants contended that the Tribunal’s failure to believe the first appellant’s claim that the TTP had wrongly accused him of being a spy was a product of illogical reasoning: it was not logical to simultaneously conclude that the TTP had a history of executing people that it wrongly accused of being spies (on the one hand) and that (on the other) the TTP did not ordinarily mistake for spies people who, in fact, were not spies. That illogical reasoning, so the appellants contended, infected the Tribunal’s conclusion that the first appellant did not satisfy a criterion for the granting of a protection visa. That being so, they said, that conclusion was aptly described as the product of jurisdictional error.

Legal unreasonableness: general principles

29    The Tribunal’s power to review the Minister’s Decision turned upon whether or not it was satisfied that the appellants met the statutory criteria that condition the grant of protection visas. The attainment (or otherwise) of that state of satisfaction was a matter for the Tribunal’s discretion.

30    Ordinarily, discretionary powers conferred by statute must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”), 445 [43] (Allsop CJ, Robertson and Mortimer JJ). In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Allsop CJ, Griffiths and Wigney JJ), this court—referring to Li, Singh and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ)—distilled (at 171-172 [58]-[65]) recent developments in the law regarding legal unreasonableness into seven points of principle:

First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).

Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).

…

Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ).

Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] [sic] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].

Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).

Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

31    In determining whether an administrative decision is attended by illogicality or irrationality sufficient to establish jurisdictional error, the test (so stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131], [133] (Crennan and Bell JJ)):

…must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

…

…the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.

32    The Tribunal’s consideration of the Review Application involved a rehearing de novo of the appellant’s Visa Application. In conducting its review of the Minister’s Decision, the Tribunal was invested with the same power that the Minister himself had exercised: the Act, s 415(1). Insofar as concerned the appellants’ Visa Application, the exercise of that power turned upon whether or not the Tribunal was satisfied that the appellants met any one or more of the criteria that conditioned the grant of protection visas: the Act, s 65(1).

33    The existence (or otherwise) of that state of satisfaction was a jurisdictional fact: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 20 [37] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 638 [102] (Crennan and Bell JJ). To the extent that such a state arose (or did not arise) by reason of some illogicality or irrationality, the resultant decision may be susceptible to judicial review: Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309, 330-331 [59] (Griffiths and Moshinsky JJ, with whom Logan J agreed). But not every lapse in logic or deviation from perfectly rational decision-making will be sufficient. In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (Griffiths, Perry and Bromwich JJ), the court observed (at 122 [47]) that:

…for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 ( SZOOR ) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] per Wigney J).

34    Of particular relevance to this appeal, the court went on to observe (also at 122 [47]):

Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error…

Consideration

35    The legal proposition upon which the appellants’ first ground proceeds is structurally sound. A conclusion, whether stated definitively or arising as a matter of generalisation (as the appellants contend was so in this case), that is inherently inconsistent with another conclusion (in the sense that at least one of them must be wrong) is one that is attended by irrationality or illogicality of the extreme kind to which the authorities refer. If such a conclusion materially taints a finding as to the existence or otherwise of a jurisdictional fact—including, for example, whether or not the Tribunal is satisfied that an applicant meets one or more of the criteria that condition the grant of a visa—the ensuing decision will be liable to review as the product of jurisdictional error. The Minister did not contend otherwise.

36    The flaw in the appellants’ contention, with respect, is that it proceeds upon the basis that the Tribunal concluded, whether by means of an implicit generalisation or otherwise, that people in Pakistan did not ordinarily find themselves wrongly accused by the TTP of being spies. It is not apparent—and I do not accept—that it formed any such view.

37    The Tribunal’s conclusion was simply that it was not credible that the TTP would have accused the first appellant of being a spy “…on the basis of his employment as a driver at the Foreign Office as he claims”: Tribunal Decision, [39] (above, [21]). That cannot fairly be equated with a generalisation that the TTP did not ordinarily mistake for spies people who, in truth, were not spies.

38    Clearly, the submission that the TTP had mistakenly accused the first appellant of being a spy was central to the appellants’ contention before the Tribunal that, if returned to Pakistan, the first appellant was at risk of relevant persecution or harm. The Tribunal was obliged to (and did) consider whether, in fact, he had been so accused. To that end, it asked itself—as plainly it should have (or, at the very least, rationally, reasonably and logically could have)—why it might be that the TTP would mistake the first appellant for a spy. Whether the TTP had a reason for thinking that the first appellant was a spy was plainly a matter of which the Tribunal could properly take account in determining whether, in fact, it did think that he was a spy.

39    On that score, the appellants pointed to the first appellant’s work history. It was suggested that the TTP’s mistaken belief arose because of the first appellant’s working proximity to high-ranking government officials, and the fact that he would likely have had occasion to drive them (or any one or more of them) to meetings with other high-ranking government or security officials (including at a nearby US military base or UN facility). That suggestion having been made, the Tribunal was permitted (if not obliged) to consider whether it was likely that the first appellant’s employment history might be sufficient to prompt the TTP to mistakenly conclude that he was a spy: in other words, whether that hypothesised causal connection was credible. For the reasons that it articulated, it did not consider that it was.

40    There was very little information before the Tribunal about the circumstances of those whom the TTP had mistakenly concluded were spies. The country information upon which the appellants relied did not identify reasons why that mistaken belief had arisen in past instances. There was a suggestion that “[a]ny man with a score to settle with an enemy can complain to the Taliban that his adversary is involved in spying” but that suggestion did not obviously have any bearing upon the appellants’ Visa Application (which is to say that there was no evidence or suggestion that there was anyone who had a “score to settle” with the first appellant and who, to that end, might have been moved to falsely accuse him of spying). The first appellant’s work history was all that the Tribunal had to go on—and the only matter that the appellants nominated—as to why the TTP might have wrongly formed the view that the first appellant was a spy. It did not consider that it was credible that that work history might be sufficient to prompt the mistaken belief under which the TTP was said to be labouring.

41    It was open to the Tribunal to reason that the first appellant’s work history was not a credible foundation upon which to conclude that the TTP mistakenly believed that he was a spy. Doing so was not inherently inconsistent with the proposition that the TTP occasionally mistook for spies people who, in fact, were not spies. There was no implicit generalisation of the kind about which the appellants complain; and the Tribunal’s consequential failure to accept that the first appellant was someone whom the TTP wrongly believed was a spy cannot, on that basis, be impugned as the product of jurisdictional error.

Conclusion

42    It follows that the appellants’ first ground of appeal is not made out.

Ground two: alleged failure to make a required finding

The appellants’ contention

43    The appellants produced the TTP Letters in support of their contention that the first appellant, if returned to Pakistan, was at risk of relevant harm. Those letters, on their face, tended to suggest that he was: they accused him of being a spy and referred to orders having been issued to “[o]ur [m]ujahids” to find and kill him and his family. On any view, those letters, if authentic, would go some way to establishing the appellants’ entitlement to protection.

44    The Tribunal did not, in terms, make a finding that the TTP Letters were inauthentic. Instead, it identified other aspects of the evidence concerning the first appellant’s circumstances that it did not accept; and, en route to rejecting the appellants’ contention that the TTP had mistaken the first appellant for a spy and had threatened his life accordingly, gave “greater weight” to those parts of the evidence than was given to the TTP Letters: Tribunal Decision, 40 (above, [21]).

45    The appellants maintain that the Tribunal was obliged to make findings on key issues of fact; and that its failure to draw and state a conclusion that the TTP Letters were or were not authentic involved a failure to discharge that obligation.

The Tribunal’s obligations

46    The Tribunal was obliged, upon the appellants having made the Review Application, to review the Minister’s Decision: the Act, s 414(1). Doing so required, in effect, that it assume the position previously occupied by the Minister’s delegate and consider, for itself, whether the Visa Application should be granted: the Act, ss 65 and 415.

47    The Visa Application turned upon whether or not the Tribunal, in conducting the review that it was obliged to conduct, was satisfied that the appellants met any one or more of the criteria specified in s 36 of the Act. If it was satisfied that they did, then it was obliged to set aside the Minister’s Decision and grant the appellants’ Visa Application. If (as was ultimately the case) it was not satisfied that they did, then it was obliged to affirm the decision not to grant the Visa Application. The Tribunal’s statutory task, then—like that of the Minister before it—was to consider whether or not it was satisfied as to the existence of a particular state of affairs: specifically, that the appellants met one or more of the criteria for which s 36 of the Act provided.

48    In order that it might attain or not attain that state of satisfaction, the Tribunal was plainly obliged to consider what might happen to the appellants (and, in particular, the first appellant) in the event that they (and he) returned to Pakistan. It could not determine whether the first appellant possessed a relevant fear (or was otherwise subject to a relevant risk) of harm without doing so. Plainly, divining what the future might hold was a task that called for some informed speculation. As is to be expected, its execution involved a question in respect of which evidence and submissions were received. Those materials touched upon events that were said to have occurred in the past (namely, whether or not the TTP had mistaken the first appellant for a spy and had threatened his life accordingly). Again, that those materials would traverse that territory is hardly surprising. The foundation for the fears that the appellants said that they held regarding what might happen to them if they returned to Pakistan was inevitably informed by what they said had happened to them (or, more particularly, to the first appellant) in the past: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”), 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 237 [53] (Sackville, North and Kenny JJ). The Tribunal could not lawfully discharge its task unless it was conscious of—and gave consideration to—the materials that the appellants advanced in that respect: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (Kenny, Griffiths and Mortimer JJ).

49    The Act does not, in terms, impose upon the Tribunal an obligation to make any particular findings. Clearly in this case, the Tribunal could not discharge its statutory task without at least finding that it was or was not satisfied that the appellants met one or more of the criteria for which s 36 of the Act provides. Such a finding—and any others that went to what the Tribunal considered were material questions of fact—required expression in the Tribunal’s written decision: the Act, s 430(1); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 (McHugh, Gummow and Hayne JJ). If it failed to record in its reasons the conclusions that it drew, and the evidence or other material upon which it drew them, then the Tribunal risked being thought to have not made them and, potentially thereby, to have overlooked matters that it was obliged to consider. That, in turn, would expose it to a charge that it had failed to perform the statutory task with which it was entrusted: Minister for Home Affairs v Buadromo (2018) 362 ALR 48 (“Buadromo”), 59 [47] (Besanko, Barker and Bromwich JJ).

50    The appellants maintain that the Tribunal was obliged to make (and state) a finding as to whether or not the TTP Letters were authentic. Heavy reliance was placed to that end upon the decision of this court in NAQG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1631 (“NAQG”) (Allsop J). There, the court set aside a decision of the Refugee Review Tribunal by which an application relevantly identical to the one presently under consideration was declined. The appellants were a family of Bangladeshi citizens. The husband and wife appellants, who claimed to have been politically active in Bangladesh, sought protection on the basis that they would be persecuted in their homeland because of that activism. In support of that claim, the husband claimed that he had been falsely charged with some offences in Bangladesh and tendered some documents that he said established as much. Country information available to the Tribunal suggested that false documentation of the kind upon which the appellants relied was easily obtained. In rejecting the applicants’ claims, the tribunal concluded that the husband had not, in fact, been falsely charged. However, save for a summary reference to having received them, it said nothing about the documents upon which the appellants had relied to establish that proposition. Allsop J observed (at [17]):

[T]he issue as to whether the Tribunal completed its jurisdictional task arises if it can be seen to have decided a fact without addressing material before it which, on its face, contradicted the conclusion that it was otherwise minded to draw and which it expressed.

Later, at [41]-[42], his Honour stated:

If the Tribunal has not made a finding about the documents in question it has failed, in my view, to complete its jurisdictional task. It simply cannot conclude that there are no false charges only upon disbelieving the first appellant’s evidence, without making a finding upon documents which on their face prove the fact that there are such charges.

…

[T]he evidence, which is not merely corroborative, but on its face documentary evidence negating of the fact otherwise found, was not dealt with.

(emphasis added)

51    For obvious reasons, the appellants point to the words emphasised above. So the submission proceeds, they reflect that the Tribunal was obliged to state in its reasons either that the TTP Letters were or were not authentic; and that its failure to do so amounts to a failure to understand and properly discharge the statutory function with which it was entrusted.

52    The language employed in NAQG—referring, as it does, to the Tribunal “making a finding”—is not limited to that authority. In Guo, the majority (Brennan CJ, Dawson J, Toohey J, Gaudron J, McHugh J and Gummow JJ) discussed the need, in cases such as the present, for the Tribunal to engage in what I have described above as “informed speculation” about what might happen to a visa applicant if he or she is returned to his or her country of origin. At 575, it said:

In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason." Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.

(emphasis added)

53    The authenticity of the TTP Letters was a matter that, together with others, was capable of informing the Tribunal’s assessment of whether or not the TTP had accused the first appellant of spying and, for that reason, had threatened his life. That was an issue of the sort to which the High Court in Guo referred in the passage cited above: it was one that called for a conclusion (that is to say, a “finding”) as to the occurrence of a past event (namely, whether the first appellant’s life had been threatened) in order that an assessment might be made of the likelihood of a future event (namely, that the first appellant would be subjected to relevant persecution or harm were he to return to Pakistan). Questions arising in respect of the evidence and submissions that informed that conclusion, however, would not themselves qualify as questions of material fact.

54    I do not read either NAQG or Guo as requiring that the Tribunal make and record findings on intermediate factual or evidential issues. On the contrary, I consider that the law is clear that it is under no such obligation. A finding of fact “…may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality”: Buadromo, 59 [46] (Besanko, Barker and Bromwich JJ); see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604-605 [46]-[47] (French, Sackville and Hely JJ).

55    Further and more significantly, the weight to be given to the evidence about a particular fact is a matter for the Tribunal: Abebe v The Commonwealth (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (“SZJSS”), 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

56    Whether or not the TTP Letters were or were not authentic was not dispositive of the Tribunal’s review of the Minister’s Decision. It would have been open to the Tribunal to find that they were authentic but that the first appellant nonetheless did not satisfy one or more of the criteria upon which his Visa Application turned (for example, because he might reasonably avoid the risks that they foreshadowed by relocating to another part of Pakistan); or even, alternatively (although perhaps less likely), that he did notwithstanding that they were fakes. The weight (if any) to be given to the TTP Letters was a matter for the Tribunal: SZJSS, 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Subject to the principles of legal unreasonableness (with which this ground of appeal does not engage), the Tribunal could attribute to the TTP Letters whatever significance it considered was appropriate. It was obliged only to take account of them in forming the view that it formed about whether or not the first appellant had been threatened in the way that he claimed (and, more broadly, whether he was able to satisfy one or more of the criteria upon which his Visa Application turned).

57    To speak of its obligation to “take account” of the TTP Letters is to do no more than to recognise that the Tribunal was obliged to engage in an “active intellectual process” directed to the issue or question in respect of which the appellants advanced them: Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ), 476-477 (Burchett J), 495-496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 (Griffiths, White and Bromwich JJ); Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, 7 (Lindgren, Rares and Foster JJ); Telstra Corporation Ltd v ACCC (2008) 176 FCR 153, 181-182 (Rares J). The Tribunal was obliged to recognise that the TTP Letters were advanced in support of the appellants’ contention that the TTP had threatened the first appellant; and then, conscious of that reality, to turn its mind to whether or not the TTP Letters warranted acceptance of that claim.

58    There is not any real doubt that the Tribunal in this case turned its mind to—that is to say, engaged in an active intellectual process regarding—what should be made of the TTP Letters. Its reasons contained several references to them and exposed a clear consciousness of their significance to the appellants’ Visa Application (namely, that they supported the appellants’ contention that the TTP had mistaken the first appellant for a spy and had threatened him accordingly). The Tribunal evidently did not consider that the TTP Letters, viewed under the light of other considerations, were sufficient to warrant acceptance of that contention. Whether that was because it considered that they were fake was not stated (although it is difficult to envisage any other explanation). But, regardless, the Tribunal was not obliged to form or state a view on that, nor to explain “…the sub-set of reasons why it accepted or rejected individual pieces of evidence…”: Buadromo, 59 [48] (Besanko, Barker and Bromwich JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423 [67] (McHugh J). Subject to the principles governing legal unreasonableness—which, as already identified, are not engaged by this ground of appeal—it was for the Tribunal to determine what weight it gave to the evidence, including the TTP Letters, that informed its conclusion that the first appellant had not been mistaken for a spy or relevantly threatened.

59    The conclusion expressed in the previous paragraph, it must be conceded, is not easily reconciled with the conclusion that Allsop J reached in NAQG. Although his Honour, clearly enough, was concerned in NAQG about the lack of a “finding” as to the authenticity of the corroborative documentary evidence advanced in that case, other parts of his reasons expressed that concern in different terms. For example, at [17], his Honour observed that “...the issue as to whether the Tribunal completed its jurisdictional tasks arises if it can be seen to have decided a fact without addressing material before it which, on its face, contradicted the conclusions that it was otherwise minded to draw and which it expressed” (emphasis added). At [42], he summarised the Tribunal’s error as having “not dealt with” evidence that was “…not merely corroborative, but [that was] on its face documentary evidence negating of the fact otherwise found”. In those senses, his Honour can be understood to have decided the matter on the basis that the Tribunal had failed to engage in an “active intellectual process” directed to the factual issue in respect of which the documents were advanced, namely whether or not the husband appellant in that case had been falsely charged with offences in Bangladesh.

60    In any event, subsequent authorities, both in this court (Buadromo) and the High Court (SZJSS), establish that, subject to the principles of legal unreasonableness, the weighing of evidence is a matter for the Tribunal and that it is under no obligation to state why it was minded to accept or reject discrete aspects of the evidence advanced before it.

Conclusion

61    The Tribunal was not obliged to make (and then state) a finding that the TTP Letters were or were not authentic. Its failure to do so did not bespeak jurisdictional error. The appellants’ second ground of appeal discloses no appellable error.

Disposition

62    Neither of the appellants’ grounds of appeal is made out. The FCCA’s conclusions were, in both respects, correct. The appeal will be dismissed with costs.

Associate:

Dated:    5 August 2019

SCHEDULE OF PARTIES